Egged on by pandemic-closed offices, lawmakers and media mull changes to Pa.’s open records law

(©patpitchaya - Stock.Adobe.com)

As an attorney for local governments, state Rep. Paul Schemel knows that open records requests can be an unwelcome interruption to a day, with seemingly little purpose.

One such request was from a man in a property line dispute, Schemel, R-Franklin, recalled, who requested to know the pay of his neighbor, who worked on a public road crew, so he could gossip about it at a local bar.

“Although the impulse to ask why is understandable, the fact is that the public information, which government entities hold, belongs to the public just as much as roads and parks,” Schemel said, “and it’s not our business to question why someone wants this public information.”

The necessity of public access to public information was discussed for the next two hours at a Tuesday afternoon hearing on Pennsylvania’s open records law, and how it weathered the COVID-19 pandemic.

Transparency gurus, local government officials, and media advocates all told the House State Government Committee that the law became more critical than ever during a year when Pennsylvanians were subject to more government than ever.

That increased demand, combined with closed offices, also exposed deficiencies in the state’s decade old transparency, they added.

For two months at the start of the pandemic, Gov. Tom Wolf’s administration put off public records requests from media, lawmakers and private citizens.

Among document requests delayed due to were a list of businesses given waivers to operate despite Wolf’s pandemic-driven business closures, or requests for data underlying his administration’s health policy choices.

The administration cited an exemption in the state’s open records law that allows for the response timeline to be extended due to closed offices.

The exemption was originally written for small municipal governments, which may not be open more than a few days a week, transparency experts said, and was not intended to shield the entire state government from answering requests.

Gov. Tom Wolf ran as a champion of government transparency. The COVID-19 pandemic is putting that to the test

That loophole was closed by the legislature last summer. The also allowed individuals to request data and modeling used to justify the state’s disaster response. The bill passed unanimously over Democrat Wolf’s opposition, and became law without his signature.

Liz Wagenseller, the new director of the state Office of Open Records, said questions about how to define data under the law will fall first to her office, before heading to court.

Such a court battle will likely be over the state’s Disease Prevention and Control Act. The Wolf administration and local governments have used the law’s confidentiality clause to prevent the release of COVID-19 related data.

That law, combined with continued public records delays, have kept reporters from publicly available information for months more despite the General Assembly’s efforts, said Cate Barron, president of PA Media Group, which owns PennLive.

“All has not been smooth sailing in the pursuit of transparency since then,” Barron told the committee.

If legislatures chose to amend state public health law, said Melissa Melewsky, chief counsel for the Pennsylvania NewsMedia Association, exemptions within the state’s existing open records law would protect people’s private health information, while allowing access to broader case data.

Both Barron and Melewsky also pushed for broader changes to the law, including expanded access to law enforcement documents — such as disciplinary records and body cam footage — as well as requiring agencies to pay for unsuccessful appeals and uploading commonly requested information to government websites.

Lyndsay Kensinger, a spokesperson for the Wolf administration, did not reply to specific questions. She argued that the hearing was “a hypocritical waste of time,” as the General Assembly is exempt from some requirements of the state open records law, such as releasing internal emails.

After the meeting, Schemel — chair of the House’s subcommittee on transparency — said that he did want to change the disease control law’s confidentiality clause.

“The committee needs to dig into that to see, really, what is the objection here? Are we applying too strict a standard by not giving out information?” Schemel said.

He also said he would support expanding what state legislative records were open to public access.

Both these pandemic and non-pandemic related concerns could be addressed with the same legislation, Schemel added

Regardless of changes to come, in the present, the state’s open records law has been in heavy use. Despite early delays, appeals have gone up 31 percent over the last fiscal year, said state transparency chief Wagenseller.

The department has also issued guidelines to government agencies to require that open records officers be able to work remotely, to prevent last year’s delays again.

“People are more engaged, paying attention, and hungry for information,” Wagenseller said.